Crossing the Line – Firearm Preemption Protection Under Attack

Friday, January 19, 2018

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Gun control groups are fond of describing preemption as a doctrine whereby a state has stripped local governments of their power to regulate guns. In fact, under established legal principles, localities are subordinate “creatures of state law,” with no inherent rights or powers other than what a state decides to delegate to them through statutes or charters. Although some local governments may be delegated an authority to regulate public safety and welfare (“police power”) as broad as that exercised by the granting state itself, this power retains its essential character as delegated authority and is limited both by the corporate boundaries of the locality and any restrictions on its exercise that may be imposed by the state.

State preemption laws have been enacted across the nation to block local governments from passing laws on labor and employment, taxation, and many other issues of sufficient importance to require consistency and justify a uniform policy approach across the state.

For example, half of all states have some form of preemption on local minimum wage laws; 19 states likewise preempt local governments from imposing mandatory paid leave laws; over 40 states have limitations on how local governments raise revenue or assess or spend taxes; and more than 40 states have laws that prohibit localities from enacting laws restricting firearms, ammunition, and firearm components.

The tradeoff for withholding this local legislative power is equalized laws throughout a state, which means individuals and businesses don’t have to navigate a variety of conflicting regulatory schemes that change with each municipal or county boundary. In the case of firearm preemption laws, these ensure that fundamental Second Amendment rights are not diluted or distorted through controversial local policies. As NRA-ILA executive director Chris Cox has noted, firearm preemption laws protect gun owners “from harassment by an unreasonable and confusing patchwork of municipal gun laws… so that the state legislature, rather than every town, village, and burg, has the sole ability to control state police powers that are clearly of general concern.”

One illustration is a City of Seattle court case arising from the city’s decision to implement a “gun-free” policy, which resulted in a ban on firearms in public places like community centers, sports fields, playgrounds, performing art venues, and others owned or managed by the city. Winnie Chan and other concealed carry permittees successfully sued and overturned the policy for not only violating the preemption law, RCW 9.41.290, but another statute that authorized persons with a valid permit to carry “for the purposes of protection or while engaged in business, sport, or while traveling” unless otherwise prohibited by state law. Confirming that actions taken by a local government in excess of the limits on its authority are invalid, regardless of how well-intentioned or critical to public welfare they are alleged to be, the court pointed to explicit language in RCW 9.41.290 that repealed local rules, “regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.”

Since then, localities and the courts in the Evergreen State have been chipping away at the preemption statute. Last year, the Supreme Court of Washington upheld a City of Seattle fee imposed exclusively on gun and ammunition sales, an “innovative” measure to “save lives” and create local funding for “gun violence” research. The court determined that RCW 9.41.290 preempts only “regulation” of firearms, not taxation.

More significantly, legislators in Washington State have recently introduced a bill, SB 6146, to repeal the state preemption law entirely. As justification, the bill cites the need to “restor[e] inherent local authority to adopt firearms regulations” so localities may themselves “address the epidemic of firearm violence in their communities.”

It’s not difficult to understand the impact of this bill if passed. According to a U.S. census document, as of 2012 Washington State had close to 2,000 local governments – including counties, cities, and towns. King, Pierce, and Snohomish counties, three of the most densely populated counties, had anywhere from 86 to 157 units of local government within each county alone. Once each locality has the authority to build upon state laws and adopt its own area-wide rule, law-abiding citizens who cross the line of their own jurisdiction to work, shop, visit, or travel will have to comply with whatever mix of firearm and ammunition restrictions and bans the local lawmakers view as feasible from time to time.

Gun control proponents argue that this local control of firearm laws allows for innovative, “customized solutions” to gun crime, and fills “regulatory gaps” at the state and federal level. This state and federal “policy vacuum” argument disregards the extensive network of federal and state laws – especially in Washington State – that already comprehensively addresses firearms and firearm offenses. Such local “solutions,” moreover, have previously run afoul of state firearm rules, or sought to impose clearly unconstitutional gun restrictions (as was the case with since-invalidated handgun bans in Chicago and the District of Columbia). And far from overriding “tradition” and leading to “illogical results,” preemption laws are based on long-standing legal principles on the legislative preeminence of the state over localities, and the need for consistency on issues as important as civil rights.

Every recent gun control measure promoted in Washington State, from the so-called “universal background checks,” to the “extreme risk protection order” law, to the Seattle “gun violence tax” on gun and ammunition sales has been predicated on promises of reducing gun crime and protecting families and communities. Once passed, though, the background check law has been found to have had no “measurable effect,” the enactment of Seattle’s gun fee has been followed by more violent crime, and information on the “extreme risk protection order” law suggests it is not being used (the proponent group admits it isn’t tracking the use or effectiveness of the law). The bill proposing the revocation of the preemption law is no different.

Preemption laws are not new. As anti-gun activists increasingly focus their agenda on convincing state legislatures to adopt restrictive firearm laws and bans, legislators need to remember that there are good policy reasons, quite apart from the constitutionally protected rights at stake, for why almost all states have laws prohibiting local jurisdictions from imposing their own gun policies.

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.